SUSHMA JAIN Vs. M/S. NAVEEN BOARD CO

JUDGEMENT

(1.) Respondents have been served but do not appear. Reports of ordinary service and courier show that respondents have refused service. Since the respondents have chosen not to appear, I am proceeding to decide the appeal.

(2.) This appeal is filed under Section 37 of the Arbitration & Conciliation Act, 1996 (hereinafter referred to as 'the Act') against the impugned order of the court below dated 26.11.2011 which has accepted the objections of the respondents under Section 34 of the Act and set aside the Award dated 28.3.2003. Award has been set aside by giving a finding that the clauses in the bills dated 31.8.1999 and 20.9.1999 did not amount to an arbitration agreement because there were no signatures on the same. The court below has given this conclusion in spite of the fact that respondents had failed to appear in the arbitration proceedings and take such objection to jurisdiction under Section 16 of the Act before the arbitrator, and an exparte Award was passed for a sum of Rs.51,984/- in favour of the appellant/claimant and against the respondents with respect to the Paper and Paper Boards which were supplied by the appellant/claimant to the respondents.

(3.) I am indeed surprised at the way in which the trial court has dealt with this matter. This is all the more so because before the trial court the binding judgment of the Supreme Court in the case of Narayan Prasad Lohia Vs. Nikunj Kumar Lohia and Ors., 2002 3 SCC 572 was cited and which holds that objection as to jurisdiction of the arbitrator has to be necessarily taken before the arbitrator by filing of an application under Section 16 of the Act and which if not done, objection as to jurisdiction is deemed to be waived. Para 16 of this judgment of the Supreme Court reads as under:-